REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 52868/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER Ji..iDGES: NO
(3) REVlSED: N
In the matters between:-
KUMESHNEE PADA YICHIE N.O.
SARASWATHI PADAYICHIE
and
CHANGING TIDES 17 (PROPRIETARY) LIMITED
INRE:
CHANG(NG TIDES 17 (PROPRIETARY) LIMITED
and
KUM ESH NEE PADA YICHIE N.O.
SARASWATHI PADAYICHIE First Applicant
Second Applicant
Respondent
Plaintiff
First Defendant
Second Defendant
2
JUDGMENT
JACOBSAJ
[11 This is an application for rescission of a judgment granted against the two
applicants jointty and severally in the sum of R647 936.87 and ancillary relief on 21
September 2022.
[2] On 5 May 2025 the applicant's attorney of record uploaded a notice of
withdrawal as attorneys of record. The hearing notice of set down was served on the
applicant's attorney of record on 7 April 2025. On the day of the hearing the first
respondent appeared in person . and applied for a postponement of the matter. I
refused the application for postponement and mentioned that the reasons for the
refusal will be contained in this judgment.
[3] No substantive application for postponement was presented . The first
respondent mentioned from the bar that she applied for legal aid. She was requested
to supply proof of the application for legal aid but I was informed by her that "legal aid
does not provide proor. No information has been supplied to whom at the legal aid
department she applied, exactly when the application was made, what screening
particulars were required and supplied to obtain legal assistance or what the
respondents' prospects of success would be. In open court the first applicant referred
to and mentioned the age of the second applicant (73 years of age) as the primary
reason why postponement should be granted.
[4] The judgment sought to be rescinded in this application has been granted
almost three years ago and the respondents have brought an urgent application to
stay execution during January 2023. In my view no explanation at all exists on record
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to enable me to exercise my discretion in favor of the applicants to grant postponement
of this rescission application. It is in my view it is not in the interest of justice to do so.
[51 Default judgment was granted on 21 August 2022. The rescission
application is dated 9 November 2022. At the time the rescission application was
launched, the applicant had legal presentation . The applicants were informed on 6
July 2022 that the case against them was on the roll for 18 August 2022 and their legal
representatives as early as May 2022. On 16 August 2022 the applicants ' legal
representatives made a settlement proposal to the respondent.
[6] The applicants show no defense in law (or triable issue) on the merits of the
claim against them. I find no error in the granting of the judgment by Phalana J. The
applicants had legal representation during the proceedings, until judgment was
granted on 18 August 2022. They were under notice of bar to deliver a plea and the
notice of enrolment was served on the first applicant personally on 19 May 2022 and,
on her attorney two days earlier. A vague and sketchy account of the events that lead
to her default is supplied by the first applicant. She was in willful default.
[71 Costs on the same scale as that of the order granted on 21 September 2022 ·,
is sought. I can find no reason why the rescission application should not be dismissed
with costs on the same scale.
[8] Under the circumstances , I make the following order:
1. The application is dismissed with costs on a scale as between
attorney and client.
HIGH COURT
N, PRETORIA
Heard on:
For the applicant:
Instructed by:
For the respondent:
Date of Judgment: 12 May 2025
Adv P Oosthuizen
Email: isebrand 1@icloud.com
Velile Tinto & Associates Inc
Email: service@tintolaw .co.za;
meganca@tintolaw.co .za
In person
15 May 2025 4